The presumption under Section 139 of the Negotiable Instruments Act regarding legally enforceable debt is rebuttable; the failure to prove such debt leads to liability under Section 138.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

1. Heard Mr. A. M. Bora, learned Senior Counsel, assisted by Mr. M. S. Hussain, learned counsel, for the appellant. Also heard Mr. S. Nawaz, learned Amicus Curiae, appearing for the respondent.

2. The challenge in the present appeal is to the Judgment dated 30.08.2013, passed by the learned Judicial Magistrate First Class, Golaghat, Assam in CR Case No. 334/2012, dismissing the complaint filed by the appellant, herein, under Section 138 of the Negotiable Instruments (N.I) Act.

3. The facts in brief requisite for adjudication of the present appeal is noticed hereinbelow:

The appellant projects that he is the owner of Green Reed Lodge, situated at Kohara, and the respondent, who is a film director, along with his team, had stayed in the lodge of the appellant from 05-11-2011 till 10-11-2011 and then w.e.f., 25-11-2011 till 30-11-2011.The respondent was billed for an amount of Rs.43,464/- (Rupees Forty Three Thousand Four Hundred Sixty Four) for the stay, for the said periods in the lodge of the appellant. The opposite party had paid an amount of Rs.4,464/- (Rupees Four Thousand Four Hundred Sixty Four) in cash and had thereafter issued a cheque for the balance amount of Rs.39,000/- (Rupees Thirty Nine Thousand) vide cheque bearing number 554514, dated 07-12-2011, drawn on State Bank of India, Silpukuri Branch, Guwahati. The appellant deposited the cheque in his account maintained with the Kohara Branch of State Bank of India for collection on 02-12-2012. However, the said cheque was returned unpaid along with a cheque return memo, wherein it was stipulated that the cheque was returned unpaid on account of insufficiency of funds in the account of the respondent, herein. The appellant thereafter sent a demand notice through his advocate by way of registered post with A/D on 01-02-2012 to the respondent demanding the cheque amount within 15 days of receipt of the notice. The said notice is projected to have been received on 06-02-2012 by the opposite party. However, the opposite party failed to deposit the said amount.

The appellant accordingly lodged a complaint before the Court of the learned Judicial Magistrate First Class, at Golaghat, under Section 138 of the N.I. Act and the same was registered as C.R. Case No.334 of 2012.

The learned Trial Court examined the complainant under Section 200 CrPC and thereafter on perusal of the complaint petition and the documents filed thereto, proceeded to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881, against the respondent herein, and issued notice to the respondent. Upon appearance of the respondent before the Trial Court, the respondent having pleaded not guilty and claimed to be tried, a Trial ensued. During the trial, the appellant, herein, examined 2(two) witnesses including himself as prosecution witnesses.

The Learned Trial Court, after examining the witnesses produced by the appellant, proceeded to record the statement of the opposite party under the provisions of Section 313 CrPC. The respondent, herein, during his examination under Section 313 CrPC categorically denied the allegations made by the appellant, herein.

The Learned Trial Court, upon completion of the Trial, proceeded vide Judgment dated 30.08.2013, to dismiss the complaint by holding that the complainant had failed to prove the charge under Section 138 of the N.I. Act beyond all reasonable doubt against the respondent and accordingly, the respondent came to be acquitted.

Being aggrieved, the appellant has instituted the present appeal after obtaining leave from this Court.

4. Mr. A. M. Bora, learned counsel for the ap